At Liberty Law Blog, Marc DeGirolami: Comparing Traditionalism and Originalism II. From the introduction:
In my last post, I explored the interpretive method of the majority opinion in Town of Greece v. Galloway, describing it as traditionalist though with interesting connections to certain strands of originalism. In this post, I’ll take a look at another traditionalist decision, NLRB v. Noel Canning. As with the post on Town of Greece, the object is simply to individuate the opinion as distinctively traditionalist, not to defend it.
First, a quick recapitulation of traditionalism in constitutional interpretation. Traditionalist interpretation is concerned with perpetuating and maintaining longstanding legal practices—not only those of the Supreme Court but also of other legal and political institutions (Congress and the Executive, for example) as well as social and cultural institutions (as in the case of legislative prayer). Especially in the many cases of vague constitutional text, traditionalist interpretation takes these practices not as evidence of meaning but as constituents of meaning.
Traditionalist interpretation consequently values the practices of many different sorts of institutions. It is institutionally pluralist in this way, and certainly not focused exclusively on the Supreme Court. In fact, a traditionalist Supreme Court opinion will be deferential to the constitutional views of the coordinate branches where those views have endured for very long periods of time. It will be interested in maintaining and re-cementing those views. There is therefore a democratic component of traditionalist interpretation, though it is the democratic sensibility of the authority of long-standing practice as the accumulated wisdom of the people over time, not that of present majority inclination.
As to Noel Canning, Professor DeGirolami continues:
The influence of traditional institutional practice on the Court’s decision was massive. Relying on Chief Justice Marshall’s statement in McCulloch v. Maryland that the “longstanding practice of government” must inform the Court’s role to “say what the law is,” the Court emphasized that “long standing and established practice is a consideration of great weight in a proper interpretation of constitutional provisions.” In this, the Court’s first foray into interpreting Recess Appointments Clause in more than 200 years, “we must hesitate to upset the compromises and working arrangements that the elected branches of government themselves have reached.”
The relationship of originalism and traditionalism in Noel Canning is complicated. The majority opinion takes particular pains to note that the phrase “the Recess” is ambiguous; Breyer says that it isn’t clear whether the clause applies to intra-session appointments as well as inter-session appointments. If this proposition is accepted (a big if), then it is possible to say that originalism and traditionalism coexist in Noel Canning: the Court is authorized to engage in “broader interpretation” only because it first finds that the text is not decisive. Originalism continues to enjoy what some scholars have described as “lexical priority.” Of course, one might question that conclusion (as Justice Scalia did in his concurrence), and one might even wonder in a more cynical vein whether a judge inclined toward “broader interpretation” will find his way to it one way or the other.
But the particular nature of that “broader interpretation” in Noel Canning is of great interest. What makes a practice long-standing? How long and continuous is long and continuous enough? Which political virtues are supported by the traditionalist method? And how does the longstanding practice or traditionalist approach differ from living constitutionalism? …
I thought I might disagree with his account, but I don't: the ensuing description is insightful, and seems (partly reading between the lines) somewhat critical of the Noel Canning decision. I also think it is very useful to describe traditionalism as an alternative to both originalism and living constitutionalism. However, for some reservations I have about the broad use of arguments from tradition, see here.
Posted at 6:17 AM